Two food companies are currently facing consumer class actions which allege that products contain per- and polyfluoroalkyl substances (PFAS). The products targeted by the class actions were labeled as “all natural,” and the consumers claim that the presence of PFAS within the product makes the “all natural” label misleading.
PFAS may be present in the soil or water used to grow produce; this produce, which may contain PFAS from the soil or water, can then be used to produce other foods. These foods may then contain PFAS, even though PFAS were not intentionally added to the food. FDA’s testing on the prevalence of PFAS in the food supply chain indicates that a small percentage of the foods tested have detectable levels of PFAS. However, in certain food types, FDA has seen an increase in the amount of foods with detectable PFAS. For example, FDA’s seafood testing has shown an increase in both the number of samples with detectable levels of PFAS and an increase in the PFAS levels of those products. FDA has indicated that the amount of environmental PFAS taken up by foods depends on a variety of factors, including the specific type of PFAS and the food.
The cases, both filed in federal court in New York, target Coca-Cola’s Simply Tropical product and POM Wonderful’s 100% Pomegranate Juice product. The class actions allege that the juice products targeted have detectable levels of PFAS. Because the products are marketed as “all natural,” along with other similar claims, the presence of PFAS, substances which are considered artificial, the plaintiffs claim that the labels are misleading.
Both cases seek certification of a New York class and a national class. The causes of action include (1) breach of warranty; (2) deceptive business practices; (3) false advertising; (4) fraud and constructive fraud; and (5) unjust enrichment.
Moving forward, we’ll carefully monitor both of these cases and any other class actions targeting PFAS in foods.
Liz Presnell is a food industry consultant and lawyer, and has worked in the food industry for nearly a decade. She can be reached at presnell@foodindustrycounsel.com.